Van Steenburgh v. Hoffman

This was an action to recover money only, and in such cases, the jury in their discretion, may render a general or special verdict {Code, § 261). But .the court may require the jury “ to find upon particular questions of fact” {id). And this finding controls the general verdict {id. § 262). It is not necessary, in this case, to decide whether the court, where a trial by jury is waived, may make a general decision, without finding all the issues, separately. In strictness, as I understand the old practice, although in many cases, a general verdict was taken; yet, particularly where there were different causes of action, or where the finding upon one issue did not necessarily dispose of all of the rest, the issues were, as a general rule, all passed upon (1 Burr. Pr. 236; Van Benthuysen vs. DeWitt, 4 J. R. 213; Graves vs. Morley, 3 Lev. 55; Patterson vs. U. S., 2 Wheat. R. 22; Hanna vs. Mills, 21 Wend. 90; Boynton vs. Page, 13 id. 425; 3 Chitt. Gen. Pr. 476-7; and see Moore vs. Butlin, 7 Ad. & E. 595; 1 Saund. R. 27, 28, n. d., 6 ed.). That would seem to be correct practice under our new system of pleading. *493If desired by either party, on a trial by the court, surely the material facts should be stated (and see the practice under the new system of pleading in England, 3 Chitt, Gen• Pr. 919, 921). But however that may be, the referee must state all the material facts put in issue and found by him. The unsuccessful party has a right to have these, as well as his conclusions of law, placed upon the record {Code, §272, 281, 348).

Where all the issues are referred, the prevailing party need not give notice of the report, or furnish a copy of it. Judgment is of course {Code, §278, 272).

Perhaps the report could be amended, nunc pro tunc, but this might deprive the defendant of his appeal. The report must be corrected, and a new judgment can then be entered up thereupon.

Ordered accordingly.